Justice Committee on Dec. 3rd, 2013

[The Chair, Conservative, Mike Wallace]

I'll call to order meeting number eight of the Standing Committee on Justice and Human Rights. Today, per the order of reference of Tuesday, November 5, we are going to start discussing Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco).

However, regarding the estimates we were talking about at the last meeting, we did get a letter back about the office piece, from the person we wanted to hear from. I would like....

Yes, Bob?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I was going to move that we accept the estimates. I think it was 1b—

[The Chair, Conservative, Mike Wallace]

It's 1b, 5b, 35b, and 50b.

JUSTICE

Department

Vote 1b—Operating expenditures..........$683,004

Vote 5b—The grants listed in the Estimates and contributions..........$9,800,000

Office of the Director of Public Prosecutions

Vote 35b—Program expenditures..........$3,777,349

Supreme Court of Canada

Vote 50b—Program expenditures..........$118,613

(Votes 1b, 5b, 35b, and 50b agreed to)

Shall the chair report votes 1b, 5b, 35b, and 50b under Justice to the House?

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you, sir, for that short delay.

We have with us from the Department of Justice, Paul Saint-Denis, who is the senior counsel, criminal law policy section.

Mr. Saint-Denis, the floor is yours for up to 10 minutes.

[Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Mr. Chairman.

I don't really have a long statement. What I just want to say are a few words explaining the legislation.

The bill proposes amendments to the Criminal Code in order to provide for a new offence of trafficking in contraband tobacco. The particular activities that are prohibited include the offer for sale, possession for the purpose of selling, as well as distributing and transporting of such tobacco. The penalties range according to the following. On indictment the maximum penalty is up to five years' imprisonment, and on summary conviction it's up to six months. However, it does provide for mandatory minimum terms of imprisonment for individuals who have been convicted of this particular offence for the second or subsequent times. For a second conviction it's up to a minimum of 90 days. For a third conviction it's up to 180 days of minimum imprisonment, and then for a fourth or subsequent conviction it's up to two years less a day.

In order to have these penalties imposed on you, there's a requirement that the quantity of tobacco involved be fairly significant. It requires the presence of or the involvement of 10,000 cigarettes or more of contraband tobacco, or 10 kilograms of raw leaf tobacco, or 10 kilograms of any other tobacco product.

The legislation also creates the possibility of the federal prosecution services prosecuting this offence. It does this by amending the definition of attorney general in the Criminal Code so that there will concurrent jurisdiction between the federal prosecution services and the provinces in order to prosecute this offence.

That's all I have to say, sir. I'm more than happy to answer any of your questions.

[The Chair, Conservative, Mike Wallace]

Thank you for that succinct opening statement.

Our first questioner from the New Democratic Party is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chairman.

Mr. Saint-Denis, thank you for being here this morning.

I will begin by wishing Ève Péclet a happy birthday, as she has reached the ripe old age of 25 this morning. It certainly makes the rest of us around this table feel old, but it's all good.

Mr. Saint-Denis, can you briefly talk about the consultations which were held around Bill C-10? The Excise Act, 2001, already contains an offence for that. Can you explain to us the difference between the two provisions? Are they similar? Is there not a risk that it is in conflict with the act? With whom did the department discuss this risk?

[Paul Saint-Denis]

Thank you, Ms. Boivin.

We consulted people from Revenue Canada, from the Department of Finance, from the Department of Public Security and from the Department of Justice. Our consultations were with government bodies only. We also consulted with the RCMP.

I will now talk about the overlap of the offence contained in the Excise Act of 2001 and the offence contained in Bill C-10. Some activities are similar, including the sale, of course, but this bill does not contain minimum sentences, which are found in the 2001 Excise Tax Act. However, the 2001 Excise Tax Act contains minimum fines for that offence. Under the 2001 Excise Tax Act, only the federal government may prosecute this offence, whereas under Bill C-10, the federal government and the provinces may do so.

That is the gist of it.

[Françoise Boivin, NDP, Gatineau, QC]

Did you also consider the problem of possession? Indeed, the bill only talks about the offer, sale and purchase. Possession is not covered by Bill C-10.

Can you explain this to me?

[Paul Saint-Denis]

Yes, we did consider the issue of possession. We had been asked to address the situation of trafficking. There is possession for the purpose of trafficking, but in our view, simple possession was not part of the description of what really constitutes trafficking, namely the movement of product from one place to another. Therefore, we excluded the idea of possession.

[Françoise Boivin, NDP, Gatineau, QC]

As for mandatory minimums, they basically apply to cases of recidivism, in a specific context involving quantity. The Crown will have to announce that it intends to prove that there has been recidivism.

Can you explain to us what type of recidivism we are talking about here? Will we have to prove culpability for this offence under the Criminal Code? Is there not a risk that this would be dealt with differently depending on the province a person is in?

In cases of impaired driving, for instance, it has often been the case that the Crown did not prove that it was a repeat offence. This explains why some cases make headlines, for instance when someone had already been arrested six times for impaired driving, and who was yet again caught behind the wheel.

Is there not a risk that this type of thing could also happen here? What really concerns me is the possibility that cases are treated differently depending on where a person is caught, in other words, that there is a double standard.

Does this worry you?

[Paul Saint-Denis]

Regarding the way the imposition of a minimum sentence is announced, the prosecutor must give notice. In fact, the requirement to give notice is contained in section 727 of the Criminal Code. This covers all cases involving minimum sentences. If a prosecutor intends to ask for a minimum sentence for an accused, the prosecutor must give notice. The prosecutor must also indicate to the court that the notice has been given.

Regarding the type of conviction, it is only limited to this offence. For example, offences committed by an individual which are covered by the 2001 Excise Act will never count. So that issue is dealt with separately.

Regarding the disparity between the practices of the prosecution from one region to another, you probably know that prosecutors have fairly wide discretion. Generally speaking, this discretion is more or less exercised based on the region you are in. If the problem is much more serious in one region than another, it is possible that more minimum sentences will be imposed. I am not concerned about that. This corresponds fairly well to the usual discretion the prosecution enjoys.

[Françoise Boivin, NDP, Gatineau, QC]

Very well. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for those questions and answers.

Our next questioner, from the Conservative Party, is Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

Thanks for being here, Paul. I have a couple of questions for you.

Under subsection 121.1(1), I wonder if consideration was ever given to including the word “trade”, so it would read, “No person shall sell, offer for sale, transport, deliver”.... The reason for that is that under the CDSA, we have buy, barter, trade, or sell. Trade can mean that if you're at a high enough level, you're not even touching it. I wonder if there was any thought given to that.

[Paul Saint-Denis]

No, actually, to tell you the truth, we did not consider “trade”. We did consider “brokering” but excluded that. We wanted to focus primarily on the actual movement.

If an individual is trading without having it in their possession and if that individual is high enough up in the hierarchy of the organization, it is possible for that individual to ensure or to organize the trade of that product. But in that case, we probably would be using conspiracy, provided we could obtain the necessary elements to prove it.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I think that from the perspective of a police investigation, it's far easier to prove a trade than it is to prove a conspiracy— way easier.

[Paul Saint-Denis]

That's probably likely.

Mind you, in the case of a criminal organization offence, there is also the offence of instructing. That may be a little easier to prove than the conspiracy offence. If you can put together sufficient evidence to demonstrate trade, that's very close to the kind of evidence you would need to demonstrate conspiracy.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I clearly understand what you're saying.

From the perspective of a police investigation, trade is far easier to investigate when you're looking at, for argument’s sake, someone who is going to trade 10,000 cigarettes for a car. It's easier for the police to establish that than it is to establish the conspiracy chain.

[Paul Saint-Denis]

That's correct.

If an individual is going to trade 10,000 cigarettes for a car—at first, I would say it would be a very cheap car—but it's likely, then, that the individual would be in possession of the cigarettes. At one point, it seems to me that the individual is going to be in possession of that product, and if that's the case, then we do have possession for the purpose of sale. Ten thousand cigarettes doesn't automatically get you a possession charge.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I used 10,000 because it's that number where I'm sure it would be higher. I know from my previous career—especially in the drug section—that “trade” was used quite often, and it was a way in which we were able to capture both offences. It's something to consider, and I thought it was funny that it was left out.

My second question is with regard to this becoming an offence under the Criminal Code. It's my understanding that under the Excise Act, the RCMP has jurisdiction because they're the federal component, and that a lot of municipal police forces, even some provincial police forces, do not have authority under the Excise Act.

Is this why this was created under the Criminal Code, so that all police forces across Canada would have the ability to lay charges?

[Paul Saint-Denis]

Yes, it is, in part.

The other issue was that there was a measure of discomfort in placing minimum penalties of imprisonment in the Excise Act. The Excise Act, as you know, is a revenue statute. While it's viewed as being okay to have minimum fines in a revenue statute, there was, as I say, some discomfort in having minimum terms of imprisonment there. Therefore, it was thought best to put it the Criminal Code.

Also, there was a sense that something of a more noticeably criminal nature needed to be attached to trafficking in contraband tobacco. Something like that was better placed in the Criminal Code, where it was clearly and obviously a criminal offence, rather than putting it in the Excise Act, where people would ask, “Well, is it really criminal, is it only fiscal?” That was another part of the reason.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I have one last question for you on the mandatory minimums on hybrid and dual offences. This will become a hybrid offence, but it states that in order for the prosecution to move forward with a mandatory minimum, they must go by indictment. But any previous offence, which could have been summary, could be used as evidence to move forward with the mandatory minimum.

The crown would have to declare, at the beginning of the trial, whether they're going by indictment or summary, is that correct?

[Paul Saint-Denis]

That is correct.